City of Wichita v. Wallace, 63105
Decision Date | 02 March 1990 |
Docket Number | No. 63105,63105 |
Citation | 246 Kan. 253,788 P.2d 270 |
Parties | The CITY OF WICHITA, Kansas, Appellant, v. Bobbie L. WALLACE, Appellee. |
Court | Kansas Supreme Court |
1. General principles and guidelines in determining the constitutionality of legislative enactments are stated and applied.
2. The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice.
3. The standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.
4. In an appeal by the City of Wichita from an order of the district court finding an ordinance enacted by the City to be void and discharging the defendant, the record is examined and it is held: The district court did not commit error in finding that (1) the defendant had standing to challenge the constitutionality of the ordinance, and (2) the ordinance is void as being unconstitutionally vague.
Ed L. Randels, Asst. City Atty., argued the cause, and Thomas R. Powell, City Atty., was with him on the brief, for appellant.
There was no appearance by the appellee.
This is an appeal by the City of Wichita (City) from the district court's holding that an ordinance enacted by the City to regulate erotic dance studios was void because it was unconstitutionally vague.
The defendant, Bobbie L. Wallace, was found guilty in Wichita Municipal Court of operating an exotic dance studio between midnight and 6:00 a.m., in violation of Wichita, Kan., Code § 3.06.140 (1987). Defendant filed a timely notice of appeal to Sedgwick County District Court. The parties stipulated to the following facts, which were the basis for the district court's decision:
The district court found that defendant had standing and that the business was open to the public. In addition, the court found that the City had the authority to enact an ordinance for the purposes set out therein, to set forth procedures to obtain a license, and to regulate the times such establishments could be open, requirements concerning tips, and placement of a stage. The court, however, found the ordinance unconstitutionally void for vagueness, stating:
The ordinance sought to regulate erotic dance studios by requiring such establishments to be licensed as follows:
"(b) To fail to comply with all regulations provided in this chapter." Wichita, Kan., Code § 3.06.020.
The license is to be issued for a particular premises and is valid for a period of one year. Wichita, Kan., Code § 3.06.020. To obtain a license, a person must apply, providing name and residence, place of business, name of the owner of the premises, and names and addresses of all persons having a financial interest in the place. Wichita, Kan., Code § 3.06.040. The application must be accompanied by a license fee as required by § 3.06.030 of the Code. The chief of police is required to investigate the applicant. Wichita, Kan., Code § 3.06.040. A photograph of the applicant must accompany the application. Wichita, Kan., Code § 3.06.050. Employees of such establishments are also licensed and must provide similar information. Wichita, Kan., Code § 3.06.160.
The city council reviews the application and makes a decision about whether to issue or deny the license as follows:
"If the application for a license is in proper form and accompanied by the license fee as provided in Section 3.06.030, the City Council members shall examine the application and, after examination of the application, the City Council members, if they approve the same, shall issue a license to the applicant...." Wichita, Kan., Code § 3.06.060.
The ordinance then contains four limitations on the issuance of a license, which include provisions concerning prior convictions involving moral turpitude, and the requirements of copartnership, a corporation, or a manager/agent. Wichita, Kan., Code § 3.06.060(a) through (d). None of these four exceptions is discussed in the record and therefore do not appear to be applicable to the case at hand.
The first section of the ordinance defines words or terms used therein. Three of the four set out in the ordinance are relevant to a decision of the issues raised in this appeal, and provided as follows:
There were three hearings conducted in this case. At the first hearing, the court noted that defendant had standing to object to the enforcement of the ordinance against her. The court also noted that the ordinance appears to give the City unrestricted discretion as to whether to grant the license, which would make the ordinance invalid. Recognizing the requirement to construe the ordinance constitutionally, if possible, the court construed the ordinance to require the City to issue a license to anyone who qualifies under the licensing provisions.
The court noted that the City has a right to zone and determine where businesses will be conducted, the authority to regulate hours of closing in certain businesses for the good of the peace and quiet of the neighborhood, and the authority to regulate the sale and consumption of alcoholic liquor. The court noted, however, that the regulation of entertainment conflicts with First Amendment rights of freedom of expression, which have been held to include nudity. The court then asked the attorneys to brief the question of whether the ordinance was void for vagueness because of the possibility that people would have to guess about whether their conduct would come under the provisions of the ordinance.
At the second hearing, the court noted that the failure of the ordinance to require the element of scienter contributed to the court's concern that the ordinance was void for vagueness.
At the third and final hearing, the court expressed its concern that the definitions contained in the ordinance would apply to classical plays as well as performers in a musical play such as "Hair." When the city attorney responded that if "Hair" was to be performed, the issue would be whether the theatrical presentation emphasized and presented live nude entertainment. The court responded that this play...
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